Hill, Richard William v Ophel, Kenneth [1977] FCA 89

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Bq COMMONWEALTH OF AUSTRALIA

IN THE FEDERAL COURT

V No. 19 of 1977 OF AUSTRALIA

INDUSTRIAL DIVESION In the matter of -

THE CONCILIATION AND ARBITRATION ACT 1904

Between — RICHARD WILLIAM HILL

Claimant And -

KENNETH OPHEL

wa

Respondent

ORDER

JUDGES MAKING ORDER: Smithers, Franki and Northrop, JJ.

DATE OF ORDER: 13th October 1977

WHERE MADE: Melbourne

THe COURT ORDERS THAT:

1. The Rule Nisi herein be discharged.

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SMITHBRS, J: In this case we are satisfied that the claimant

PBE/RI Ophel

has failed to establish that either of the respondents is failing to perform or observe any rule of the association which he is under any express or implied obligation to perform or observe.

We have examined all the rules referred to by Mr. Cooney with a view to ascertaining whether, in the circumstances disclosed to the court, there could be found any express or itplied obligation which the respondents or eitner of ther could possibly be said to be falling to observe or perform.

It was our view that it was arguable that in the circumstances in which claims of the claimant were outstanding asainst the association and required the attention of the association either at its federal level of managerent or its branch level of managerent, a duty could be implied that the executive officers such as the president and the secretary, should take all reasonable steps to bring such claims before the appropriate committee of wanagement for decision. It became clear however on the evidjence of the respondents that this duty, if actually created by the rules, had been fully performed and observed.

The claims were brought before the branch management committee and were referred by that committee to the federal committee of management which rejected them, accordingly, even on the view of the rules most favourable to the claimant, there 1s no outstanding un- performed obligation thereunder in either of the respondents and there was no such obligation at the commencement of these proceedings.